New Transgender Discrimination Case Could Have Impact on Tennessee Employers, Employees

A new case still making its way through the pre-trial process in a federal court in Michigan could eventually offer new and additional clarity for Tennessee employers and employees regarding the law of discrimination against transgender people in the workplace if it reaches the Sixth Circuit Court of Appeals. The case serves as a renewed reminder that, although transgender people are not expressly covered by Title VII, the law does prohibit employers from discriminating using sex-based stereotypes, and such prohibitions already extend to matters like an employee’s shift from wearing stereotypically male clothes to female clothes as part of the employee’s transitioning process.

The employee in the case was Amiee Stephens, who had worked as a funeral director and embalmer at R.G. & G.R. Harris Funeral Homes, Inc. in suburban Detroit since the fall of 2007. In the summer of 2013, Stephens, who had lived as a man up to that point, informed her employer that she was transgender, was in the process of transitioning from male to female, and would begin attending work in business-appropriate women’s wear. Within less than three weeks, the funeral home had declared the employee’s proposed actions unacceptable and fired her.

This action spawned an Equal Employment Opportunity Commission lawsuit against the funeral home. In the lawsuit, the EEOC accused the funeral home of violating Title VII by discriminating against Stephens because she was transgender and also because Stephens’ proposed actions did not conform to the employer’s set of gender-based expectations and stereotypes.

In a recent ruling in the Stephens case issued in late September, the U.S. District Court for the Eastern District of Michigan refused to allow the funeral home to ask certain questions as part of the discovery process that related to Stephens’ “sexual anatomy.” The state of the employee’s genitalia, the court pointed out, was irrelevant. Regardless of the employee’s anatomy, or even how Stephens identified, all the EEOC had to prove was that the employer perceived Stephens to be a man and eventually discriminated against the employee for failing to conform to the employer’s sex-based stereotypes. If the EEOC proved that the funeral home perceived Stephens as a man and fired Stephens for failing to conform to how the employer believed that a man should dress (as Stephens did by proposing to dress in women’s clothing), this would make up a valid Title VII violation.

To support this point, the Michigan court cited several Sixth Circuit rulings of which Tennessee employers should make themselves aware. While Title VII does not include transgender people among its set of protected groups for purposes of employment discrimination claims, these recent Sixth Circuit decisions functionally have the same effect of barring discrimination against transgender employees. “Sex stereotyping based on a person’s gender nonconforming behavior is impermissible discrimination,” the appeals court ruled in 2004 in Smith v. City of Salem. Under Sixth Circuit precedent, it does not matter whether your employee identifies as a transgender person who is transitioning from the gender of their birth to the gender with which they identify, or simply identifies as a man who prefers to dress in women’s clothing (or vice versa). The law prohibits employers from discriminating against employees simply because an employee does not conform to the way that the employer thinks a man or woman should act or appear. If a Tennessee employer does so, the employer is likely in violation of Title VII.

Dealing with the appropriate manner for ensuring compliance with Title VII when it comes to transgender employees is a relatively new issue. To make sure your business is not at risk for violating the law, talk to the knowledgeable Tennessee employment discrimination attorneys at Mays & Kerr. They have the in-depth experience and the up-to-date information to keep your business on the right side of Title VII.

To speak with one of our lawyers about your case, call 1-877-986-5529.